United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM OF DECISION AND ORDER
MARTIN REIDINGER, District Judge.
THIS MATTER is before the Court on Petitioner's Motion under 28, United States Code, Section 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [Doc. 1]. For the reasons that follow, the Court finds that the petition must be dismissed as untimely.
I. PROCEDURAL HISTORY
On October 25, 2010, Petitioner pled guilty pursuant to a written plea agreement to conspiring to possess with the intent to distribute cocaine and cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 846. [Criminal Case No. 1:10-cr-00032-MR-9, Doc. 197: Acceptance and Entry of Guilty Plea; Doc. 185: Plea Agreement]. In the plea agreement, Petitioner stipulated that the amount of cocaine base that was known to or reasonably foreseeable by him was in excess of 150 grams but less than 500 grams. [ Id., Doc. 185 at 2].
In preparation for Petitioner's sentencing hearing, the probation office prepared a presentence investigation report ("PSR"), calculating a total offense level of 29, and a criminal history category of III, yielding an advisory sentencing guidelines range of between 108 and 135 months. [ Id., Doc. 296 at 12: PSR]. The probation officer noted that Petitioner faced a mandatory minimum term of ten years under 21 U.S.C. § 841(b)(1)(A). [Id.]. Therefore, the guideline term of imprisonment was 120 to 135 months' imprisonment. [Id.]
On September 21, 2011, this Court sentenced Petitioner to 120 months' imprisonment. [ Id., Doc. 340: Judgment]. Judgment was entered on September 26, 2011, and Petitioner did not appeal. Petitioner placed the instant petition in the prison mailing system on June 2, 2014, and it was stamp-filed in this Court on June 6, 2014. [Doc. 1]. In the § 2255 petition, Petitioner contends that he is entitled to relief under the provisions of the Fair Sentencing Act of 2010, and based on the Supreme Court's opinion in Dorsey v. United States , 132 S.Ct. 2321 (2012).
II. STANDARD OF REVIEW
Pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings, sentencing courts are directed to promptly examine motions to vacate, along with "any attached exhibits and the record of prior proceedings" in order to determine whether a petitioner is entitled to any relief. After having considered the record in this matter, the Court finds that no response is necessary from the United States. Further, the Court finds that this matter can be resolved without an evidentiary hearing. See Raines v. United States , 423 F.2d 526, 529 (4th Cir. 1970).
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act (the "AEDPA"). Among other things, the AEDPA amended 28 U.S.C. § 2255 to include a one-year statute of limitations period for the filing of a motion to vacate. The limitation period runs from the latest of:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through ...